24:0009(3)CA - VA, Washington, DC and VA Medical and Regional Office Center,Fargo, ND and AFGE -- 1986 FLRAdec CA



[ v24 p9 ]
24:0009(3)CA
The decision of the Authority follows:


 24 FLRA No. 3
 
 VETERANS ADMINISTRATION
 WASHINGTON, D.C.
 
 and
 
 VETERANS ADMINISTRATION MEDICAL 
 AND REGIONAL OFFICE CENTER
 FARGO, NORTH DAKOTA
 Respondents
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 7-CA-40438
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 to the attached Administrative Law Judge's Decision filed by the
 Veterans Administration, Washington, D.C. and Veterans Administration
 Medical and Regional Office Center, Fargo, North Dakota (the
 Respondents).  This case involves the Respondents' alleged failure and
 refusal to bargain in good faith with the American Federation of
 Government Employees, AFL-CIO (Union) and Respondents' unilateral
 implementation of policy guidelines for the safe handling of
 chemotherapeutic agents by bargaining unit employees in violation of
 section 7116(a)(1) and (5) of the Federal Service Labor-Management
 Relations Statute (the Statute).  For the reasons stated below, we find
 that the Respondents violated section 7116(a)(1) and (5) of the Statute
 by failing to fully bargain with the Union.
 
                                II.  Facts
 
    On February 2, 1984, the Respondents forwarded to the Union a
 proposed policy guideline for the safe handling of chemotherapeutic
 (chemo) agents that the Union had been seeking for over one year.
 Immediately thereafter, on February 3, the Union requested bargaining on
 these guidelines.  The parties met in a 45-minute bargaining session on
 February 21, 1984, at which time the Union presented and explained 18
 proposals.  The Respondent Medical Center made brief comments and
 objections as to some of the proposals and declared only one
 nonnegotiable.  The Respondents' representative requested the Union to
 submit its proposals in writing and stated that another bargaining
 session would be arranged.  No further bargaining took place, however,
 and on March 2, the Respondent Medical Center forwarded the revised
 policy to the Union stating that the majority of the Union's proposals
 did not address the policy and that it had incorporated some of the
 Union's wording.  On March 5, 1984, the Respondent Medical Center sent
 the Union a memorandum saying, in effect, that it would not discuss the
 proposals further.  Finally, on April 2, 1984, the Respondents
 implemented the new policy that incorporated some of the Union's
 suggested wording made at the February 21 meeting.
 
                 III.  Administrative Law Judge's Decision
 
    The Judge concluded that the Respondents failed and refused to
 bargain in good faith with the Union and unilaterally implemented policy
 guidelines on the safe handling of chemo agents in violation of section
 7116(a)(1) and (5) of the Statute.  She found that the Union had
 negotiable proposals on the bargaining table at the time the alleged
 failure to bargain and the unilateral implementation occurred.  She also
 found that while the Union did have "great impact in formulating" the
 policy guidelines and that some bargaining took place, such bargaining
 fell short of the statutory obligation imposed upon management.  The
 Judge's cease-and-desist Order included retroactive application of any
 agreement reached pursuant to a bargaining request made by the Union.
 
                  IV.  Exceptions to the Judge's Decision
 
    The Respondents excepted to the Judge's finding that they did not
 meet their bargaining obligation.  They took the position that they were
 not required to bargain as to the substance of proposals concerning the
 guideline because they involved the exercise of management rights and
 did not fail or refuse to bargain concerning the impact and
 implementation of the guidelines.  The Respondents also took the
 position that they had no obligation to negotiate with the Union
 regarding union-initiated midterm proposals concerning the handling of
 chemo agents.  Finally, they argue that it was inappropriate for the
 Judge to order retroactive relief.
 
                               V.  Analysis
 
    We find in agreement with the Judge and based on her rationale that
 the Respondents violated section 7116(a)(1) and (5) of the Statute by
 failing and refusing to bargain in good faith with the Union and by
 unilaterally implementing guidelines on the safe handling of chemo
 agents.  In so finding, we have not considered the Respondents'
 negotiability contentions as to the Union's proposals because they were
 raised for the first time in the Respondents' exceptions to the Judge's
 Decision.  In accordance with section 2429.5 of the Authority's Rules
 and Regulations, "the Authority will not consider evidence by a party,
 or any issue, which was not presented in the proceeding before the
 Regional Director, Hearing Officer, Administrative Law Judge or
 arbitrator." Accordingly, as this issue was not previously raised before
 the Judge in this proceeding it will not be considered.  Immigration and
 Naturalization Service, Washington, D.C., 4 FLRA 787 (1980).
 
    Further, we find no merit to the Respondents' argument presented in
 the exceptions that they had no obligation to bargain over
 union-initiated midterm proposals.  While the Respondents have no duty
 to bargain on union-initiated midterm proposals, once the Respondents
 forwarded to the Union a proposed policy guideline for the safe handling
 of chemo agents and changed working conditions of unit employees by
 subsequently issuing them, a duty to bargain was created.  See Internal
 Revenue Service, 17 FLRA 731 (1985), petition for review filed sub nom.
 National Treasury Employees Union v. FLRA, No. 85-1361 (D.C. Cir. June
 14, 1985).
 
                                VI.  Remedy
 
    We disagree with that part of the Judge's Order giving retroactive
 application to any agreement reached by the parties pursuant to a
 bargaining request by the Union.  In the circumstances of this case, a
 prospective bargaining order will best effectuate the purposes and
 policies of the Statute.  It is neither inadequate nor inherently
 restrictive of the parties' rights to address the effects on unit
 employees of changes already made.  Rather, it allows the parties the
 flexibility to bargain freely with regard to how past actions may have
 affected employees and the opportunity to agree to retroactive
 application of the agreement.  Environmental Protection Agency, 21 FLRA
 No. 98 (1986).
 
                             VII.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision, the positions of the parties and the entire
 record, and adopts the Judge's findings, conclusions, and recommended
 Order for the reasons discussed above.
 
    Therefore, the Authority concludes that the Respondents violated
 section 7116(a)(1) and (5) of the Statute by failing to fully bargain
 with the Union and by implementing guidelines on the safe handling of
 chemotherapeutic agents.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Veterans Administration, Washington, D.C. and Veterans
 Administration Medical and Regional Office Center, Fargo, North Dakota,
 shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to bargain upon request of the American
 Federation of Government Employees, AFL-CIO, or its authorized
 representative, American Federation of Government Employees, Local 3884,
 concerning the safe handling of chemotherapeutic agents by bargaining
 unit employees.
 
    (b) Implementing a change in conditions of employment of bargaining
 unit employees represented by the American Federation of Government
 Employees, AFL-CIO, without first bargaining, upon request, with the
 American Federation of Government Employees, AFL-CIO, or its authorized
 representative, American Federation of Government Employees, Local 3884,
 concerning guidelines for the safe handling of chemotherapeutic agents.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Notify the American Federation of Government Employees, AFL-CIO,
 or its authorized representative, American Federation of Government
 Employees, Local 3884, of any proposed change in conditions of
 employment concerning the safe handling of chemotherapeutic agents by
 bargaining unit employees, and, upon request, bargain concerning such
 change to the extent it is not inconsistent with any Federal law or any
 Government-wide rule or regulation.
 
    (b) Post at its facility at Fargo, North Dakota, copies of the
 attached Notice To All Employees on forms to be furnished by the Federal
 Labor Relations Authority.  Upon receipt of such forms, they shall be
 signed by the Director of the Veterans Administration Medical and
 Regional Office Center, Fargo, North Dakota, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 inclduing all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 ensure that such Notices are not altered, defaced, or covered by other
 material.
 
    (c) Pursuant to Section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VII, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply with the Order.
 
    Issued, Washington, D.C. November 12, 1986.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
 PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail and refuse to bargain upon request of the American
 Federation of Government Employees, AFL-CIO, or its authorized
 representative, American Federation of Government Employees, Local 3884,
 concerning the safe handling of chemotherapeutic agents by bargaining
 unit employees.
 
    WE WILL NOT implement a change in conditions of employment of
 bargaining unit employees represented by the American Federation of
 Government Employees, AFL-CIO, without first bargaining, upon request,
 with the American Federation of Government Employees, AFL-CIO, or its
 authorized representative, the American Federation of Government
 Employees, Local 3884, concerning guidelines for the safe handling of
 chemotherapeutic agents.
 
    WE WILL notify the American Federation of Government Employees,
 AFL-CIO, or its authorized representative, the American Federation of
 Government Employees, Local 3884, of any proposed change in conditions
 of employment concerning the safe handling of chemotherapeutic agents by
 bargaining unit employees, and, upon request, bargain concerning such
 change to the extent it is not inconsistent with any Federal law or any
 Government-wide rule or regulations.
 
    WE WILL not in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
                                       (Activity)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region VII, Federal Labor Relations Authority, whose address
 is:  535 16th Street, Suite 310, Denver, Colorado 80202 and whose
 telephone number is:  (303) 837-5224 or FTS 8-564-5224.
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 7-CA-40438
 
    VETERANS ADMINISTRATION, WASHINGTON, D.C.
 
                                    and
 
    VETERANS ADMINISTRATION MEDICAL AND 
    REGIONAL OFFICE CENTER, FARGO, NORTH DAKOTA
         Respondents
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
         Charging Party/Union
 
 
    Branson H. Moore,
    For the Respondents
 
    Cathy A. Auble and
    Joseph Swerdzewski,
    For the General Counsel,
    Federal Labor Relations Authority
 
    Larney Werth,
    For the Charging Party
 
    Before:  ISABELLE R. CAPPELLO
    Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under Title VII of the Civil Service Reform Act
 of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C. 7101 et seq.
 (1982), commonly known as the Federal Service Labor-Management Relations
 Statute, and hereinafter referred to as the Statute, and the rules and
 regulations issued thereunder and published at 5 CFR 2411 et seq.
 
    Pursuant to a charge of unfair labor practices under the Statute,
 filed on May 3, 1984, and amended on July 23, the Regional Director for
 Region VII of the Federal Labor Relations Authority (hereinafter, the
 Authority) investigated and, on July 31, issued the complaint initiating
 this proceeding.
 
    The complaint alleges that the Veterans Administration, Washington,
 D.C. (hereinafter, VA DC) and the Veterans Administration Medical and
 Regional Office Center, Fargo, North Dakota (hereinafter VA Fargo) have
 engaged in, and are engaging in, unfair labor practices within the
 meaning of Section 7116(a)(1) and (5) of the Statute.  /1/ The complaint
 specifically alleges that on or about March 5, 1984, Respondents through
 its agent David C. Engstrom at Respondents' Fargo, North Dakota
 facility, failed or refused, and have continued to refuse to bargain,
 upon request, with the Union concerning the Respondents' proposed
 guidelines for the safe handling of chemotherapeutic agents.  The
 complaint further specifically alleges that on or about April 2, 1984,
 Respondents, through their agent F.E. Gathman, at Respondents' Fargo,
 North Dakota facility, unilaterally implemented policy guidelines
 concerning the safe handling of chemotherapeutic agents by bargaining
 unit employees without bargaining with the Union over such changes in
 conditions of employment.
 
    On or about August 13, 1984, Respondents filed an answer to the
 complaint, substantially denying its allegations of unfair labor
 practices.
 
    On September 20, 1984, a hearing was held in Fargo, North Dakota.
 The parties appeared, introduced documentary evidence and examined
 witnesses.  Briefs were filed on November 9 by the Respondents and the
 General Counsel pursuant to an order of October 18 extending the
 briefing time to said date, for good cause shown and upon the unopposed
 request of Respondents.  Based upon the record made in this case, my
 observation of the demeanor of the witnesses, and the briefs, I enter
 the following findings of fact and conclusions of law, and recommend the
 entry of the following order.
 
                           Findings of Fact /2/
 
    1.  At all times material herein, the Union has been, and is a labor
 organization within the meaning of section 7103(a)(4) of the Statute,
 and Local 3884 has been, and is its affiliate and agent.
 
    2a.  On February 28, 1980, the Union was certified as the exclusive
 representative of a national consolidated union consisting of certain
 professional employees of Respondent Washington, D.C.
 
    b.  On July 23, 1981, registered nurses, among others, employed at VA
 Fargo were included in the unit.
 
    3a.  At all times material herein, VA DC and the Union have been
 parties to a national Interim Memorandum of Agreement covering the
 employees in the unit described in finding 2, above.
 
    b.  At all times material herein, VA Fargo, and the Union, have been
 subject to the terms and conditions of a collective bargaining agreement
 covering the employees in the unit described in finding 2b, above,
 (effective July 3, 1974 and amended on December 30, 1976) between VA
 Fargo and the North Dakota Nurses' Association, the Union's predecessor,
 as the exclusive representative of the Unit described in finding 2b,
 above.  This agreement provides for grievance and arbitration
 procedures.
 
    4a.  At all times material herein, Respondents are, and have been
 agencies within the meaning of Section 7103(a)(3) of the Statute.
 
    b.  At all times material herein F. E. Gathman has occupied the
 position of Center Director, at Respondents' facility located in Fargo,
 North Dakota, and has been, and is now, a management official or
 supervisor within the meaning of Sections 7103(a)(10) and/or (11) of the
 Statute, and an agent of Respondents.
 
    c.  At all times material herein, Dr. David C. Engstrom has occupied
 the position of Chief of Staff, at Respondents' facility located in
 Fargo, North Dakota, and has been, and is now, a management official or
 supervisor within the meaning of Sections 7103(a)(10) and/or (11) of the
 Statute, and an agent of Respondents.
 
    5.  Chemotherapy is the treatment of cancer by means of a family or
 drugs known as chemotherapeutic or antineoplastic agents and referred to
 as "chemo." Although physicians occasionally give chemo, registered
 nurses (RNs) have been responsible for administering chemo on a
 continuous basis since 1976.  Of the 80 RNs at VA Fargo's facility who
 might have an opportunity to give chemo, 20 to 25 administer chemo on a
 regular basis.  While 16 different kinds of chemo are used at VA Fargo's
 facility, 7 types are most frequently administered, such as Cytoxan.
 Chemo can be administered either orally, or with a syringe and needle
 into a patient's vein or muscle, or under a patient's skin.
 
    6.  While chemo may cure a patient's cancer, chemo can later cause
 other problems for the same patient.  Recent research has shown that
 health hazards also exist for the person who administers chemo.  Such
 health hazards include defects in unborn babies (such as malformed
 skulls and hearts), miscarriages, premature births, as well as
 complaints of itching, facial flushing, hair loss, headaches, nausea,
 and vomiting.  A test was developed (Ames Test) to measure mutagenic
 changes (permanent, inheritable chromosomal changes) detected in the
 urine of persons who have handled chemo.  Two separate studies were
 conducted using the Ames Test.  One study involves RNs who administered
 chemo without any safety precautions;  the other study concerned
 pharmacists who prepared chemo for administration but who wore
 protective gloves, gowns and goggles.  None of the pharamacists had any
 mutagenic changes in their urine;  but all of the nurses studied showed
 such mutagenic changes.  The January 1984 issues of The Lancet Medical
 Journal reported that a so-called Hirst Study demonstrated that Cytoxan
 is absorbed through the skin, causing mutagenic changes in the
 administrator's urine, with the long-term effects from repeated exposure
 be the handler to Cytoxan being the development of bladder cancer.
 
    7.  In 1982, Larney Werth, President of Local 3884, first learned of
 health hazards to RNs who administer chemo and asked VA Fargo's Chief of
 Staff, Dr. Engstrom, to address the health and safety aspects of RN
 administration of chemo, which Dr. Engstrom agreed to do.  Subsequently,
 Dr. Engstrom went to the Environmental Control Committee (ECC) at VA
 Fargo's facility and asked its chairman to look for other policies in
 other hospitals which could be used as a starting point to develop a
 policy for VA Fargo.  Dr. Engstrom also talked about the problem with
 Anne Doyle, who is an RN who administers chemo and has been the
 out-patient oncology (cancer) nurse since May 1982.  Dr. Engstrom
 furnished literature on the subject to Ms. Doyle.  Ms. Doyle is
 Treasurer of Local 3884.
 
    8.  On September 13, 1983, Ms. Doyle sent a letter to the ECC
 expressing her concerns, as an Oncology Nurse, regarding the need for a
 policy concerning the safe handling and administration of chemo.  See R.
 Exh. 1(a).  /3/ Receiving no response, she sent a letter to Dr. Engstrom
 on November 22, raising the same concerns and signing both as "Oncology
 Nurse" and "Union Treasurer." Dr. Engstrom responded and informed her
 that her concerns would be forwarded to the ECC for consideration.
 
    9.  In a letter dated December 7, 1983, to Dr. Engstrom, signed by
 Mr. Doyle as both "Oncology Nurse" and "Union Treasurer," she requested
 bargaining over her concerns expressed in her earlier letters.  She
 claimed they should be viewed "as Union mid-term bargaining proposals."
 See R. Exh. 1(a) and also G.C. Exh. 17(a), para. 3 and Tr. 12, 139 and
 140.
 
    10.  Ms. Doyle became a member of the Ad Hoc Committee of ECC and, on
 December 8, 1983, attended a committee meeting, along with a Union
 steward.  At the outset, she and the steward indicated that they were
 attending as Union officials, in the event the committee intended to
 finalize any guidelines over the safe handling of chemo.  Both Union
 officials were allowed to present and discuss fully their concerns on
 the matter at the meeting.
 
    11.  On December 13, 1983, the Union requested bargaining over its
 proposals on the safe handling of chemo by RNs.  See G.C. Exh. 17(a).
 On December 15, the request was denied by Dr. Engstrom, claiming that
 union-initiated proposals for midterm bargaining were not negotiable.
 Referring apparently to the Ad Hoc Committee of ECC and its meeting on
 December 8, Dr. Engstrom stated that Ms. Doyle was not invited as a
 representative of the Union, but as an interested party in terms of
 being an RN who was "the author of the proposal" considered by the
 committee (G.C. Exh. 17(a)).  Dr. Engstrom denied that the referral by
 him to the committee was to bury the subject;  that the committee had no
 authority to sign off on a policy;  and that "(s)hould a policy evolve
 out of the present proposal, it will be sent to the Union for comment"
 (G.C. Exh. 17(b).
 
    12.  Eventually the ECC adopted most of Ms. Doyle's proposals and
 sent them to Dr. Engstrom, who, in turn sent the proposed policy to the
 Clinical Executive Board (CEB) and asked for its support.  The CEB did
 not support it.  From the CEB, the proposed policy went to Director
 Gathman, who "put (it) out" (Tr. 124).  It was "an almost exact replica
 of the Union's proposals" (R. Exh. 2(a).
 
    13.  On or about February 2, 1984, VA Fargo, through Dr. Engstrom,
 forwarded the proposed policy guidelines for the safe handling of chemo
 to Local 3884.  On or about February 3, Local 3884 requested bargaining
 on the proposed guidelines.  Several dates for bargaining suggested by
 Local 3884, February 6 and 13, were apparently not satisfactory to
 management.  See R. Exh. 2.
 
    14.  On February 21, 1984, the parties met in a bargaining session
 that lasted from about 3:30 p.m. to about 4:15 p.m.  Representing
 Respondent were Dr. Engstrom, Ray Johnson, the Chief of Personnel
 Services, and Irene Bloom, Chief of Nursing Services.  Representing
 Local 3884 were Mr. Werth, Ms. Doyle, and Sue Flom, a steward in the
 unit which has the most chemo on it.  At this meeting, Local 3884 made
 18 proposals and explained them.  Of the 18 proposals, the General
 Counsel asserts that "9 of the proposals are negotiable" (Tr. 10).  The
 9 are set forth in findings 15 through 23, inclusive.  See Tr. 10 and
 G.C. 9.
 
    15.  Local 3884's proposal 1(A) provides that:
 
       The employee shall, consistent with the provisions contained in
       Section 19 of the Occupational Safety and Health Act 1970,
       Executive Order 12196, 29 CFR 1960, and all applicable laws, rules
       and regulations be responsible for furnishing to and maintaining
       for his employees places and conditions of employment that are
       free of hazards that are causing or are likely to cause an
       accident, injury or illness to the employee.
 
    See. G.C. 9(a).  The intent of Local 3884, in making this proposal
 was just to make management's proposed policy "a little bit stronger"
 (Tr. 32).  Respondents do not allege that the proposal was
 non-negotiable, only that it was "unnecessary" and "serve(d) no purpose"
 (R. Br. 8).  This proposal was discussed at the February 21 meeting of
 the parties.  Dr. Engstrom objected that "you really can't make any
 working environment hazard-free" and he "object(ed) to the strength of
 (the) language" (Tr. 33).  Local 3884's team replied that "you've got to
 strive towards making it as safe as possible" and "take every
 precaution" (Tr. 34 and see also Tr. 76-77) Dr. Engstrom agreed that
 safety was "an ideal we should pursue certainly.  He pointed out that
 the facility was already subject to the standards by Federal law.  He
 stated that "we d(o) not feel we needed to write it into our policy in
 the institution" (Tr. 127).
 
    16.  Local 3884's proposal 1(B) provides that:
 
       The union has the right to advise management concerning safety and
       health problems.
 
    See G.C. 9(a).  The intent of Local 3884 in proposing this was to
 "give (it) the right to meet with management if (it) felt there was a
 problem" and to "implement a procedure" for so doing (Tr. 34).
 Respondents do not allege that this proposal is non-negotiable, only
 that Union has the right and obligation to bring such matters to the
 attention of management and has a representative on the Health and
 Safety Committee who may bring such matters to the attention of
 management.  See R. Br. 8.  Ms. Doyle was denied the right about a year
 and a half ago, asa union representative.  See Tr. 78-79.  Counsel for
 Respondents conceded that he knew of no written agreement giving the
 Union the right to advise management concerning safety problems.  See
 Tr. 80.  Local 3884 explained this proposal.  There is no evidence that
 management made any comments about this proposal at the February 21
 meeting.  See Tr. 35, 110 and 127.
 
    17.  Local 3884's proposal 1(C) provides that:
 
       When a workplace inspection is conducted by the employer's safety
       representative or by an outside agency such as OSHA or NIOSH, the
       union shall be invited and encouraged to participate.  During the
       course of any such inspection, any employee(s) may bring to the
       attention of the inspectors any unsafe or unhealthful working
       conditions.
 
    See G.C. Exh. 9(a).  The intent of Local 3884 was to have the ability
 to meet with these inspectors when they are onsite and to bring concerns
 to their attention.  See Tr. 35-38.  Respondents do not allege that this
 proposal is non-negotiable.  See R. Br. 7-9.  Dr. Engstrom stated, at
 the February 21 meeting that VA Fargo was already subject to OSHA /4/
 and NIOSH /5/ standards so he "did not feel that (VA Fargo) needed to
 write it into (its) policy in the institution" (Tr. 127).  /6/
 
    18.  Local 3884's proposal 1(D) provides that:
 
       When an investigation is made of an occupational accident by
       anyone, the union shall be invited and encouraged to participate.
 
    See G.C. Exh. 9(a).  The intent of Local 3884 in making this proposal
 was for it to be "a kind of trigger mechanism" making management notify
 it of any accidents to one of the bargaining-unit employees while using
 chemo, and encouraging it to participate in the investigation (Tr.
 38-39).  Respondents do not allege that this is non-negotiable, only
 that a "procedure is already established to investigate accidents and
 works quite well," and to "invite additional participation could quite
 possibly result in delay and confusion" (R. Br. 8).  There is no
 evidence that management made any comments concerning this proposal at
 the February 21 meeting.
 
    19.  Local 3884's proposal 3, first sentence, provides that:
 
       The employer shall acquire, maintain and require the use of
       approved safety equipment, approved personal protective equipment,
       and other devices necessary to provide protection of employees
       from hazardous conditions encountered during the performance of
       official duties.
 
    See G.C. 9(b).  The intent of Local 3884 in proposing this was to
 insure that management maintain the safety equipment management had
 agreed to acquire, to have it ready for use on the units that give
 chemo, and to require needles and syringes to be discarded intact and
 placed in a leak and puncture proof biohazard container.  See Tr. 42.
 Respondents do not allege that this proposal is non-negotiable, only
 that "protective clothing is already being provided" and that it is
 "clear that if management provides, it will maintain" (R. Br. 8).  Local
 3884 explained, at the February 21 meeting, that a "lot of the hazard
 occurs" in the disposal of items used to administer chemo (Tr. 42).
 Protective equipment is currently available in the wards;  but Local
 3884 has no signed agreement that management will maintain it, or keep
 it there.  See Tr. 90.  At the time of the February 21 meeting, Local
 3884 proposed a date by which protective equipment would be provided;
 and Dr. Engstrom commented that he would have "trouble with the specific
 date because (he) didn't know if the policy was going to be into its
 approved form by a specific date because there was potential not only
 for (him) to have to bargain this policy with (Local 3884's) bargaining
 unit but another bargaining unit" (Tr. 128).  Local 3884's team
 indicated they "understood that aspect of it" (Tr. 128).
 
    20.  Local 3884's proposal 4(B) provides that:
 
       Management agrees to provide the where withal (sic.) to implement
       these proposals regarding antineoplastics no later than 3/15/84.
 
    See G.C. Exh. 9(c).  The intent here was to obtain an implementation
 date on a matter Local 3884 had been pursuing with management since
 November 1982.  See Tr. 45.  Respondents do not now question the
 negotiability of this proposal, although an indication of such a
 question was raised at the hearing.  Compare R. Br. 7-9 with Tr. 13-14.
 Proposal 4(B) was mentioned at the February 21 meeting.  Local 3884 said
 it wanted "implementation just as soon as possible" (Tr. 46).
 Management raised no budgetary or financial matters regarding this
 proposal.  Dr. Engstrom again explained his problem with meeting the
 specific implementation date because of bargaining obligations to
 another union.
 
    21.  Local 3884's proposal 4(I) provides that:
 
       The employer shall grant official time to a designated Union
       official for purposes of further research on the subject of safe
       administration of antineoplastics for purpose of educating
       bargaining unit employees to their safe uses.  Training programs
       will be coordinated between the A.C.N.S.E. and the Union designee.
        Official time shall be limited to 8 hours per week for
       effectuating these programs.  Tuition, official time and per diem
       shall be provided for said Union designee to attend "outside"
       workshops or courses to further knowledge and expertise on the
       subject of safe handling of antineoplastics.
 
    See G.C. Exh. 9(d) and Tr. 82.  The intent of Local 3884 in making
 this proposal was to elaborate and implement management's proposal that
 personnel would receive special training in the handling of chemo and
 also refresher courses, with documentation being given that training had
 taken place.  See Tr. 46-48.  Also, Local 3884 wanted official time to
 do research and advise unit employees.  Dr. Engstrom made the following
 comment on union proposal 4(I) at the February 21 meeting:
 
       I specifically -- this is an issue involving official time for
       further research in education on the subject.  This was an area
       where I pointed out that we do have an education committee and I
       pointed out any of the employees of the facility can request
       educational time and also financial support in terms of tuition
       and per diem and based on availability of resources the education
       committee does provide those types of things and I felt this would
       be delving into setting up or splitting the responsibilities of
       the education committee as such.  I also stated that in handling,
       since the subject of the policy was to be handling, that I had
       hoped to avoid discussion on on (sic.) official time as such which
       is an area we discussed briefly.
 
    See Tr. 129.  Although Mr. Werth could not recall any concerns raised
 by management as to proposals 4(I), he did not seem sure.  See Tr. 48.
 Dr. Engstrom, on the other hand, appeared confident of this
 recollection.
 
    22.  Local 3884's proposal 4(J) provides that:
 
          As new technology develops in the area of antineoplastics
       safety, management and the Union shall meet at the call of either
       party to discuss such developments and plan together to obviate
       any hazards identified.  This agreement shall be modified to
       incorporate any changes arrived at following such discussions.
 
    See G.C. Exh. 9(e).  The intent of Local 3884 was to provide a
 mechanism to come back to the bargaining table, if needed, as new
 technology developed.  See Tr. 48-49.  Respondents suggest that this
 proposal "may be a possible area which is non-negotiable under 5 U.S.C.
 7106(b)(1).  /7/ See R. Br. 9.  Respondents argue that management has
 the option of negotiating technology, methods, and means of performing
 work and that "(t)o incorporate this proposal would require negotiations
 every time management wished to adopt any advances made in this field,"
 which it declined to do (R. Br. 9).  As to proposal 4(J) Dr. Engstrom
 testified:
 
       I pointed out to them that regarding this issue at any time that
       there was a hazard identified any employee has responsibility to
       notify their supervisor and if the supervisor can't correct it
       then they have the right to go to a higher level.  I felt that did
       not need to be contained in this policy as such because I would
       expect it of any such employee who recognized a hazard.
 
    See Tr. 129-30.
 
    23.  Local 3884's proposal 4(K) is as follows:
 
       Introduction or use of any new or different antineoplastic agent
       will be reported to the Union before use of said chemical is
       begun.  (New as different to this Institution).
 
    See G.C. Exh. 9(e).  The intent of this proposal was to put a
 mechanism in place so that, should a new hazardous substance be
 introduced into the RNs workplace, management would first confer with
 the Union and tell them if its introduction, so that the Union "would
 have time to do a database, search library works, whatever is necessary
 to find out what the hazards are before that drug is used" (Tr. 49).
 Local 3884 would seek this notice after the facility's Pharmacy and
 Therapeutics Committee (P&TC) approved the new drugs for use at the
 facility.  See Tr. 52-53.  Local 3884 did not seek "veto power" over the
 introduction of new drugs into the hospital (Tr. 83-84).  It did want a
 report before those chemicals were begun, in order to prepare for any
 hazard.  Respondents argue, as to this proposal that:
 
       The hospital has a pharmacy and therapeutic committee which has a
       responsibility to pass on new drugs coming into use in the Medical
       Center.  The union proposal would erode and abrogate a portion of
       the function of that committee.
 
    See R. Br. 9.  Dr. Engstrom discussed the fact that, in his view, he
 was in no position to negotiate away the responsibility of the P&TC in
 determining whether or not we would put a drug in the "formulary," which
 is a list of drugs available for use on a regular basis.  See Tr. 130.
 
    24.  At the February 21, 1984, meeting the union representatives
 expressly stated that:  "We wanted biohazard bags" and all equipment
 contaminated with chemo placed in that bag (Tr. 109 and see also Tr.
 42).  Management's proposal, at the time of the February 21 meeting,
 provided for disposal in bio-hazard bags.  See G.C. Exh. 5(c), para C2.
 
    25.  After the discussions set forth in findings 15-24 inclusive, and
 before the February 21, 1984 meeting ended, Dr. Engstrom asked for a
 copy of the union proposals.  See Tr. 28 and 130.  Mr. Werth replied
 that it was "a partial proposal, that there would probably be more" (Tr.
 130).  Ms. Doyle stated that she wished to put the union proposals in a
 typewritten format because she felt that it was "not well structured and
 not completed at that time" (Tr. 130).  The union representatives told
 Dr. Engstrom he would have "a typewritten copy of their proposals by the
 following Tuesday" (Tr. 131).  (February 21, 1984, fell on a Tuesday.)
 No proposals were signed or initialed off at this meeting.  See Tr. 28
 and 111.  Dr. Engstrom concluded the meeting by stating that "he would
 arrange for the next negotiating session, he would let the Union know
 the time and place for the next session" (Tr. 28).
 
    26.  On Tuesday, February 28, 1984, Local 3884 forwarded a copy of
 its proposals to Dr. Engstrom, with the caveat:  "Not necessarily bound
 to all these proposals at this time;" and "Partial List of Proposals
 Including Most Substantive Matters." (G.C. 9(e)).  The copy appears to
 be patched-up compilation of typed and handwritten material.  Dr.
 Engstrom saw the caveat at the February 21 meeting.  See Tr. 163.  He
 had expected to see new proposals, but found none in the copy forwarded
 to him on February 28.  See Tr. 131-132 and 162-163.
 
    27.  Dr. Engstrom compared Local 3884's proposals with the original
 proposed policy, and made what he called "relatively minor changes" (Tr.
 132).  One change was to delete the adjective "bio-hazard" from the
 original proposed policy.  See Tr. 149 and compare paragraph C2 of G.C.
 Exh. 5(c), the management proposal discussed at the February 21 meeting,
 with the same paragraph in G.C. Exh. 10(c), the alteration made by Dr.
 Engstrom after receiving the copy of Local 3884's proposals in February
 28, and with the same paragraph of G.C. Exh. 13(b), the policy finally
 implemented.  As found in finding 24, above, Local 3884 explicated the
 need for "bio-hazard" bags at the February 21 meeting and never proposed
 that this word be removed from the policy.  See Tr. 54 and 110.  Other
 changes made were minor in nature, at least one having been proposed by
 Local 3884 at the February 21 meeting.  See Tr. 150.
 
    28.  By a March 2, 1984, cover memorandum, Dr. Engstrom forwarded the
 revised policy to Local 3884.  Dr. Engstrom stated that a majority of
 the Local's proposals did not address the policy and that Respondent VA
 Fargo had incorporated some of the Local's "suggested wording" (G.C.
 10).  That same day, Local 3884 responded by memorandum asking Dr.
 Engstrom to either counter-propose, or to declare the Local's proposals
 non-negotiable, and stating that Local 3884 awaited Dr. Engstrom's
 suggestion for the next bargaining session.  See G.C. Exh. 11.
 
    29.  On March 5, 1984, Dr. Engstrom sent the following memorandum to
 Ms. Doyle:
 
          1.  Your comment was solicited and considered regarding the
       policy for "Guidelines for Safe Handling of Chemotherapeutic
       Agents."
 
          2.  Once your written proposal was provided it was reviewed and
       the policy was altered in its wording where the policy was
       addressed.
 
          3.  Sections 1, 2, 3 are considered to be midterm bargaining
       and are not appropriate.
 
          4.  The views and recommendations from Section 4 have been duly
       noted and incorporated, where applicable.  It is not within the
       scope of the proposed policy to discuss such things as (a)
       official time, (b) AFGE continuing education and its funding, (c)
       abrogation of the P&T Committee or education committees, (d) or
       employees right to refuse duties.
 
          5.  In closing, proposed policies and changes are submitted to
       Local 3884 for review and comment in accordance with CSRA 7117d 1,
       2, and 3.
 
          6.  Views and recommendations should be confined to the
       proposed policy, circular, etc.  At this time the revised
       "Guidelines for Safe Handling of Chemotherapeutic Agents" will be
       forwarded to NFFE Local 225 for review and comment in accordance
       with the above and following that, will be forwarded to the
       Director for issuance.
 
    See G.C. 12.  Use of the term "not appropriate" by management has, in
 the past, been a signal to Local 3884 that management refuses to discuss
 the matter any further;  and this was the intent of Dr. Engstrom here.
 See Tr. 57-59 and 156-157.  Mr. Werth understood the use of the terms
 "views and recommendations" being "noted" as meaning that management
 would listen to Local 3884, but was not obligated to bargain over its
 proposals.  Use of the citation to "CSRA 7117d 1, 2, and 3" reinforced
 this view of Local 3884, since that portion of the Statute deals with
 "consultation rights" of labor organizations which are not certified as
 the exclusive bargaining representative of a majority of the employees
 (as is the Union here) and does limit the labor organization to
 presenting only "views and recommendations" which an agency shall merely
 "consider" before taking final action.  See 5 U.S.C. 7117(d)(1), (2) and
 (3).  Dr. Engstrom testified that he later discovered he had cited the
 wrong statutory provision, but he did not so inform Local 3884, even
 though he realized that Local 3884 probably understood this wrong
 citation to demonstrate that VA Fargo was willing only to consult.  See
 Tr. 155-156.  Local 3884 did so construe the memorandum and also
 understood that no further bargaining would occur.  See Tr. 65.  It
 therefore did not seek further bargaining on the proposed policy.  Dr.
 Engstrom testified that he did, indeed, intend no further bargaining
 with the union team "(u)nless they came up with another issue" (Tr.
 161).
 
    30.  On April 2, 1984, VA Fargo implemented the policy at its
 facility.  See G.C. Exh. 3.  Other than the addition of "Purpose" and
 "Procedures" headings, the implemented policy was no different from the
 March 2 revision of the proposed policy.
 
                        Discussion and Conclusions
 
    The General Counsel has established, by a preponderance of the
 evidence, /8/ that Respondents have failed and refused to bargain in
 good faith with the Union over negotiable proposals and unilaterally
 implemented policy guidelines on the safe handling of antineoplastics
 agents (chemo) by bargaining-unit employees.
 
    1.  Respondents content only the negotiability of one union proposal
 at issue here.  See R. Br. 7-9.  Putting that particular proposal aside,
 all the rest concern the health and safety of bargaining-unit employees,
 RNs, while performing their duties -- namely the safe handling of chemo
 in administering it to cancer patients.  See findings 15-21, inclusive
 and 23, above.  Undisputedly, chemo that is not safely handled presents
 serious health hazards to RNs.  See finding 6, above.  Thus, the
 proposals "concern matters directly affecting 'the work situation and
 employment relationship' of bargaining unit employees (and are) within
 the duty to bargain." See National Federation of Federal Employees,
 Local 1363, 12 FLRA 635, 636 (1983).  None appear, or are claimed to
 infringe upon any management right.  Thus, the union had some negotiable
 proposals on the bargaining table at the time the alleged failure to
 bargain in good faith, and unilateral implementation occurred, as will
 be now discussed.  /9/
 
    2.  Whether there has been a failure of good faith bargaining is
 measured by certain criteria set by the Statute and established by case
 precedent.  First of all, "the totality of the evidence" is considered,
 and the actions of the parties viewed in the context in which the
 negotiations arose.  See Division of Military and Naval Affairs, State
 of New York (Albany, New York), 7 FLRA 321, 338 (1981, hereinafter
 referred to as DMN).  Considered also is whether the parties approached
 the negotiations with a sincere resolve to reach a collective bargaining
 agreement;  were represented by duly authorized representatives prepared
 to discuss and negotiate on any condition of employment;  met as
 frequently as was necessary;  and avoided unnecessary delays.  See DMN,
 id. at 321 and Section 7114(b) of the Statute, defining the bargaining
 obligations of the parties in these terms.  Exploring and discussing
 each others' positions "embodies the very essence of negotiations as
 envisioned by the Statute." See Department of the Treasury, Bureau of
 Alcohol, Tobacco and Firearms, North Atlantic Region, (New York, New
 York), 8 FLRA 296, 304 (1982, hereinafter DOT).  Requirements for
 stylized forms of communication are to be eschewed.  See DOT, ibid,
 referring to no requirement that a union "must make a specific proposal
 and that discussions must somehow always lead to a written contract . .
 . ." An employer's failure to submit counterproposals is not generally
 regarded as a per se violation of the duty to bargain in good faith.
 See N.L.R.B. v. Arkansas Rice Growers Cooperative Ass'n, 400 F.2d 565,
 571 (8th Cir. 1968), a decision by the Federal agency which resolves
 labor disputes in the private sector.  The fact that intra-agency
 memorandums may speak in terms of "an obligation to consult, rather than
 negotiate" is not controlling, if the totality of the agency's conduct
 indicates that it did, in fact, bargain.  See Department of Health and
 Human Services, Social Security Administration, Baltimore, Maryland, 16
 FLRA 217, 228-229 (1984), hereinafter DHHS).
 
    3.  The record in this case has been reviewed using the above-stated
 criteria.  It reveals the following indications that bargaining as to
 the concerns at issue fell short of the statutory obligation imposed
 upon management.
 
    First of all, management proceeded at a snail's pace in formulating a
 solution to the serious concerns raised by the Union.  The Union first
 broached these concerns with the Chief of Staff at VA Fargo in November
 1982 and asked that the matter be addressed.  Management referred the
 matter to a committee, where it apparently languished.  By September
 1983, the matter was still dragging on;  and the Union Treasurer prodded
 the committee.  Upon receiving no response, the Union prodded the Chief
 Staff, on November 22, and set forth its concerns.  The Chief of Staff
 referred the concerns to the same committee.  Again, on December 7, the
 Union raised the matter with the Chief of Staff, requested bargaining
 over the concerns, which it delineated as proposals.  Finally, a union
 representative was invited to a meeting of the committee, held on
 December 8.  There the union representative pressed for a resolution of
 union concerns.  On December 13, the Union again sought to bargain over
 its proposals.  This request was denied, on December 15, on the ground
 that union-initiated proposals for mid-term bargaining were not
 negotiable and that "(s)hould a policy evolve out of the present
 proposals, it (w)ould be sent to the Union for comment." See finding 11,
 above.  Eventually, a policy did evolve out of the committee, and was
 sent to another committee, which did not support it.  It was not until
 February 2, 1984, that management forwarded the proposed policy
 guidelines to the Union -- over a year after the Union broached the
 subject to the Chief of Staff at VA Fargo.  The proposed policy was
 almost an exact replica of what the Union had proposed some three months
 earlier, on November 22, 1983.  Management then had trouble finding a
 satisfactory date to meet with the Union, and did not finally meet with
 the Union until February 21, 1984.
 
    The February 21, 1984, meeting was the only face-to-face "bargaining"
 session of the parties;  and it was more in the nature where the Union
 explained its proposals and management made brief comments and
 objections as to some of the proposals, but none as to two of the
 negotiable ones.  See findings 16 and 18, above.  No give-and-take
 negotiations typical of bargaining sessions occurred.  No written
 agreements were entered.  The meeting concluded in less than an hour
 with both parties expecting management to set another meeting after the
 Union had submitted its proposals in a typewritten format.
 
    No such meeting was ever set because, when management received the
 Union's typewritten proposals, it found no new ones.  And as to old
 ones, "the basic objections of management were that the bulk of (them)
 were addressed in other policies or by committees already in place and
 functioning" (R. Br. 8).  Here, Respondents display a basic
 misunderstanding of the meaning of the collective bargaining process.
 True, policies and committees may be in place today;  but without an
 agreement between the parties that they stay in place, they could be
 gone tomorrow.  With an agreement, the union is assured that they will
 remain in place for the life of the agreement, and that any dispute
 concerning the agreed-upon policies and committees will be subject to
 the grievance and arbitration procedures of the collective bargaining
 agreement that binds the parties.  The parties here have such an
 agreement.  See finding 3b, above.
 
    After the February 21, 1984, meeting, management made some admittedly
 "(m)inor changes in its proposed policy guidelines on the safe handling
 of chemo" (R. Br. 7);  but it also dropped the word "biohazard" as the
 type of bag into which contaminated material would be placed -- not at
 all a "minor" change, but one on which the Union had explicated the need
 at the February 21, 1984, meeting.  See findings 24 and 27, above.
 These changes were forwarded to the Union on March 2 and drew an
 immediate Union response demanding counter-proposals or a declaration of
 non-negotiability and stating that the Union awaited the next bargaining
 session.
 
    On March 5, 1984, management sent the Union a letter clearly
 indicating that management had considered all the Union's comments, had
 made such changes as it intended to make, and would implement the policy
 as soon as another union had had a chance to review and comment on the
 policy guidelines.  See finding 29, above.  Management's miscitation, in
 the letter, of the section of the Statute under which it stated that it
 submitted proposed policies to the Union, admittedly led the Union to
 believe that management would listen to the Union, but did not feel
 obligated to bargain with it.  At this point, the Jnion gave up and
 sought no further bargaining.
 
    On April 2, 1984, VA Fargo implemented the policy guidelines without
 ever discussing some of the Union's proposals, and without bargaining
 over the dropping of the requirement for biohazard bags from the
 management proposals it had met with the Union about on February 21.
 While an agency is "free to impose changes not exceeding its proposals
 after bargaining to impasse with the union" (DHHS, 16 FLRA at 229), it
 is not free to change the proposals which were the subject of the
 bargaining effort.  And the fact that the Union did have "great impact
 in formulating" the policy guidelines does not mean that some of its
 negotiable proposals may be ignored, as Respondents seem to think.  See
 R. Br. 6.
 
    4.  In addition to the usual cease-and-desist, bargaining, and
 notice-posting order, the General Counsel seeks an order that
 Respondents give retroactive application to any agreements reached.  See
 G.C. Br. 21.  The General Counsel stresses the fact that the Union
 proposals made were specific and, thus, their retroactive effect capable
 of discernment.  For example, the Union has been denied the right to
 notice of safety inspections and accident investigations and the right
 to participate therein.  See findings 17 and 18, above.  Notification to
 the Union, even months after safety inspections and accident
 investigations, would allow it to identify matters it could address on
 behalf of unit employees and to monitor compliance procedures.  The
 Union has also been denied the right to official time, tuition costs,
 and per diem for researching and training in chemo-related matters.  See
 finding 21, above.  This could all be restored.  The Union has also been
 precluded from learning of the institution of new chemo.  See finding
 23, above.  It is not too late for Respondents to advise the Union of
 this so that it can research any related health and safety problems to
 determine what action, if any, it should pursue in representing the best
 interests of unit employees.  Under these circumstances, retroactive
 relief is deemed to be appropriate, and in the public interest, and the
 complete relief sought by the General Counsel should be granted.
 Compare, Department of the Treasury, U.S. Customs Service, Region VIII,
 San Francisco, California and National Treasury Employees Union, 9 FLRA
 606, 608, fn. 3 (1982), which denied retroactive application where the
 effects would be "speculative" in terms of identifying employees
 entitled to lost overtime.  Compare also Environmental Protection
 Agency, 16 FLRA 602 (1984) where retroactive application was denied in a
 case where the union had submitted only ground rules, and no specific
 substantive proposals.  See 16 FLRA at 611.  Compare also Internal
 Revenue Service, 16 FLRA 845, 846, 863 (1984) where retroactive relief
 was denied apparently because the unilateral change and failure to
 bargain involved only a temporary program.  Compare also, Internal
 Revenue Service, 16 FLRA 907 (1984), affirming a decision of
 Administrative Law Judge Salvatore J. Arrigo, that the parties might
 find themselves before the Federal Services Impasses Panel (FSIP) to
 which the parties had already been (16 FLRA at 915-917), and therefore
 an order requiring retroactive application "would limit the requisite
 flexibility and impair the broad range of options the FSIP necessarily
 requires to execute its statutory functions" (16 FLRA at 924).  These
 cited cases are all distinguishable from the one here at issue.
 
                  Ultimate Findings and Recommended Order
 
    Respondents have violated, and are violating Sections 7116(a)(1) and
 (5), as alleged in the complaint.
 
    Accordingly, and pursuant to 5 CFR 2423.29 and Section 7118 of the
 Statute, the Authority hereby orders that the Veterans Administration,
 Washington, D.C. and Veterans Administration Medical and Regional Office
 Center, Fargo, North Dakota, shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to bargain upon request of the
       American Federation of Government Employees, AFL-CIO or its
       authorized representative, American Federation of Government
       Employees, Local 3884, concerning the safe handling of
       chemotherapeutic agents by bargaining unit employees.
 
          (b) Implementing a change in conditions of employment of
       bargaining unit employees represented by the American Federation
       of Government Employees, AFL-CIO, without first bargaining, upon
       request, with the American Federation of Government Employees,
       AFL-CIO, or its authorized representative, American Federation of
       Government Employees, Local 3884, concerning guidelines for the
       safe handling of chemotherapeutic agents.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Notify the American Federation of Government Employees,
       AFL-CIO, or its authorized representative, American Federation of
       Government Employees, Local 3884, of any proposed change in
       conditions of employment concerning the safe handling of
       chemotherapeutic agents by bargaining unit employees, and, upon
       request, bargain concerning such change.
 
          (b) Apply retroactively to April 2, 1984, any agreement reached
       pursuant to a bargaining request made by the American Federation
       of Government Employees, AFL-CIO, or its authorized
       representative, American Federation of Government Employees, Local
       3884, concerning the safe handling of chemotherapeutic agents by
       bargaining unit employees.
 
          (c) Post at its facility at Fargo, North Dakota, copies of the
       attached Notice To All Employees on forms to be furnished by the
       Regional Director, Region VII, Federal Labor Relations Authority.
       Upon receipt of such forms they shall be signed by the Director of
       the Veterans Administration Medical and Regional Office Center,
       Fargo, North Dakota and shall be posted and maintained by him for
       sixty (60) consecutive days thereafter, in conspicuous places,
       including all bulletin boards and other places where notices to
       employees are customarily posted.  The Director shall take all
       reasonable steps to insure that such Notices are not altered,
       defaced, or covered by other material.
 
          (d) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region VII, Federal
       Labor Relations Authority, in writing within 30 days from the date
       of this Order, as to what steps have been taken to comply
       herewith.
 
                                       ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 
    Dated:  March 27, 1985
    Washington, D.C.
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) Section 7116 provides, in pertinent part, that:
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency --
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;  . . .
       (or)
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter . . . .
 
    (2) The following abbreviations will be used herein.  "Tr." refers to
 the transcript.  "G.C. Exh." refers to the exhibits of the General
 Counsel and "R. Exh." to those of Respondents.  "G.C. Br." refers to the
 brief of the General Counsel and "R. Br." to that of Respondents.
 
    Corrections to the transcript appear in Appendix A to this decision.
 They are made pursuant to 5 C.F.R. 2423.19(r) and the unopposed motion
 of the General Counsel
 
    (3) R. Exh. 1 was received into evidence without objection.  See Tr.
 5.  It is a letter to Mr. Werth from the Authority's Region VII
 Director, in which she refused to issue a complaint on a charge filed by
 him because it was deemed to be "premature." (R. Exh. 1(b)).  The facts
 in findings 8, 9, and 10 are based on the investigation made by Region
 VII and as stated in this letter.  No evidence disputing those facts was
 presented at the hearing.
 
    (4) "OSHA" refers to the Occupational Safety and Health
 Administration, Department of Labor.
 
    (5) "NIOSH" refers to the National Institute of Occupational Safety
 and Health Center for Disease Control, Department of Health and Human
 Services.
 
    (6) Dr. Engstrom's testimony as to what transpired at the February 21
 meeting was given in an honest, straightforward manner.  While he needed
 to refresh his memory, as to the date (Tr. 124-125), his recollection of
 what transpired seemed sure;  and I have credited his account of
 management's participation at the meeting.
 
    (7) 5 U.S.C. 7106(b) provides that:
 
          Nothing in this section (Management rights) shall preclude any
       agency and any labor organization from negotiating --
 
          (1) at the election of the agency on the numbers, types, and
       grades of employees on positions assigned to any organizational
       subdivision, work project, or tour of duty, or on the technology,
       methods, and means of performing work . . . .
 
    (8) This is the statutory burden of proof.  See Sections 7118(a)(7)
 and (8) of the Statute.
 
    (9) The one proposal questioned by Respondent is number 4(J), which
 would require the parties to "plan together" over any new "technology"
 developed in the area of chemo safety, in order to "obviate any hazards
 identified." See finding 22, above.  Respondents argue that this
 proposal interferes with their right to bargain over "the technology of
 performing work" only at their election.  See R. Br. 9 and Section
 7106(b) of the Statute, quoted in footnote 7, above.  As the proposal is
 presently worded, this objection appears to be valid.
 
 
 
 
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to bargain, upon request of the American
 Federation of Government Employees, AFL-CIO, or its authorized
 representative, American Federation of Government Employees, Local 3884,
 concerning the safe handling of chemotherapeutic agents by bargaining
 unit employees.
 
    WE WILL NOT implement a change in conditions of employment of
 bargaining unit employees represented by the American Federation of
 Government Employees, AFL-CIO, without bargaining, upon request, with
 this representative or its authorized representative, the American
 Federation of Government Employees, Local 3884, concerning guidelines
 for the handling of chemotherapeutic agents.
 
    WE WILL notify the American Federation of Government Employees,
 AFL-CIO, or its authorized representative, American Federation of
 Government Employees, Local 3884, of any proposed change in conditions
 of employment concerning the safe handling of chemotherapeutic agents by
 bargaining unit employees, and, upon request, bargain concerning such
 change.
 
    WE WILL apply retroactively, to April 2, 1984, any agreement reached
 pursuant to a bargaining request made by the American Federation of
 Government Employees, AFL-CIO, or its authorized representative,
 American Federation of Government Employees, Local 3884, concerning the
 safe handling of chemotherapeutic agents by bargaining unit employees.
 
    WE WILL NOT in any like or related manner, interfere with